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This excerpt taken from the AYR 8-K filed May 5, 2008. Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Facility Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(c) Upon
its receipt of an Assignment and Acceptance executed by the parties thereto,
together with payment of the processing fee, the Facility Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(d) Each
Lender may sell participations to one or more Persons in all or a portion of its
rights, obligations or rights and obligations under this Agreement (including
all or a portion of its Commitment or its Loans); provided, however, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) subject to clause (iv) below, the
participant shall be entitled to the benefit of the yield protection provisions
contained in Article IV and
the right of set-off contained in Section 8.3,
(iv) none of the Borrowers shall have any greater obligation to a
participant than it would have had to such Lender in the absence of the
existence of such participant and (v) each Borrower shall continue to deal
solely and directly
25
with
such Lender in connection with such Lender’s rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of any Borrower relating to its Loans and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest or fees are payable on such Loans, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans, releasing all or substantially all of the Collateral).
(e) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
assign and pledge all or any portion of its Loans to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f)
Any Lender may furnish any information concerning any Borrower or any of its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants), subject,
however, to the provisions of Section 8.14.
8.2. Notices. All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be made to the address set forth, and in the manner and with the
effect, specified in Section 13.05 of the Intercreditor
Agreements.
8.3. Right of
Set-off; Adjustments.
(a) Upon
the occurrence and during the continuance of any Event of Default, each Lender
(and each of its Affiliates) is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender (or any of its
Affiliates) to or for the credit or the account of any Borrower against any and
all of the obligations of any Borrower now or hereafter existing under this
Agreement, irrespective of whether such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. Each
Lender agrees promptly to notify the applicable Borrower after any such set-off
and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 8.3 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) If
any Lender (a “ This excerpt taken from the AYR 8-K filed May 5, 2008. Register”). The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Facility Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(c) Upon
its receipt of an Assignment and Acceptance executed by the parties thereto,
together with payment of the processing fee, the Facility Agent shall, if such
Assignment and Acceptance has been completed and is in substantially the form of
Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(d) Each
Lender may sell participations to one or more Persons in all or a portion of its
rights, obligations or rights and obligations under this Agreement (including
all or a portion of its Commitment or its Loans); provided, however, that (i) such
Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) subject to clause (iv) below, the
participant shall be entitled to the benefit of the yield protection provisions
contained in Article IV and
the right of set-off contained in Section 8.3,
(iv) none of the Borrowers shall have any greater obligation to a
participant than it would have had to such Lender in the absence of the
existence of such participant and (v) each Borrower shall continue to deal
solely and directly
25
with
such Lender in connection with such Lender’s rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of any Borrower relating to its Loans and to approve any amendment,
modification, or waiver of any provision of this Agreement (other than
amendments, modifications, or waivers decreasing the amount of principal of or
the rate at which interest or fees are payable on such Loans, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans, releasing all or substantially all of the Collateral).
(e) Notwithstanding
any other provision set forth in this Agreement, any Lender may at any time
assign and pledge all or any portion of its Loans to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f)
Any Lender may furnish any information concerning any Borrower or any of its
Subsidiaries in the possession of such Lender from time to time to assignees and
participants (including prospective assignees and participants), subject,
however, to the provisions of Section 8.14.
8.2. Notices. All
notices, requests and demands to or upon the respective parties hereto to be
effective shall be made to the address set forth, and in the manner and with the
effect, specified in Section 13.05 of the Intercreditor
Agreements.
8.3. Right of
Set-off; Adjustments.
(a) Upon
the occurrence and during the continuance of any Event of Default, each Lender
(and each of its Affiliates) is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender (or any of its
Affiliates) to or for the credit or the account of any Borrower against any and
all of the obligations of any Borrower now or hereafter existing under this
Agreement, irrespective of whether such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. Each
Lender agrees promptly to notify the applicable Borrower after any such set-off
and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 8.3 are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
(b) If
any Lender (a “ | EXCERPTS ON THIS PAGE:
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